22 and 23 Vict. c. 59. ment of a single arbitrator, each party shall, on the written request of the other, nominate an arbitrator by writing under his hand. The appointments so made cannot be revoked except of consent, nor does death operate as a revocation. If for fourteen days after the dispute has arisen, and after the request to name an arbitrator has been made by one party or the other, this last party fails to do so, the party making the request may appoint the person whom he has named to act on behalf of both, and his award is final (sec. 131). If, before the matters referred have been determined, an arbitrator die, become incapable, or refuse or neglect for seven days to act, the party appointing him may nominate another to supply his place; and if for seven days after written notice to make a new appointment, he fail to do so, the other arbitrator may proceed ex parte. Substituted arbitrators have the same powers as those in whose place they came (sec. 132). The two arbitrators must, before proceeding to act, appoint an umpire (oversman) by writing under their hands to decide where they differ. If the umpire die, refuse, or for seven days neglect to act, the arbitrators must immediately nominate another. The decision of the umpire is final (sec. 133). On failure of the arbitrators to appoint an umpire, the Lord Ordinary is empowered to do so on the application of either party (sec. 134). The arbitrators or umpire may examine the parties or their witnesses on oath, and may order production of documents, or grant diligence for this purpose, or for citing witnesses. Letters in supplement, etc., are issued by the Lord Ordinary where necessary (sec. 135). Unless otherwise provided, the costs of the arbitration are in the discretion of the arbitrators or umpire, as the case may be (sec. 136). By the Railway Companies Arbitration Act, 1859, and which extends over the United Kingdom, certain important provisions are made for the settlement of matters in which railway companies are mutually concerned. It provides as follows:-Any two or more such companies,' under which are included the owners or lessees of a line of railway worked by steam power, and all contractors working such lines, may from time to time, by writings under their common seals, refer to arbitration any existing or future differences, and all matters in which they are mutually interested, and which they might lawfully dispose of by agreement between themselves, and may delegate to the referees such powers to determine the terms of any contract made between the companies as their directors might delegate to committees of their own number (sec. 2). The reference may from time to time be added to, altered, or revoked, by a joint writing under seal (sec. 3); but subject to such alteration or revocation, its terms are binding, and must be carried into effect (sec. 4). Where the companies agree, the reference may be made to a single arbitrator; but in default of such agreement, there must be as many arbiters as there are companies (secs. 5, 6). Where there are more arbitrators than one, each company appoints an arbitrator by writing under its common seal, and must give notice to the other companies (sec. 7). If, after such notice, any company fail for fourteen days to appoint an arbiter, the Board of Trade may do so on the application of any of the other companies (sec. 8). If, before final award, any of the arbitrators die, become incapable or unfit, or for seven consecutive days fails to act, the company that appointed him must appoint another; and on their failure to do so, the Board of Trade will as before make the appointment (secs. 9, 10). Arbitrators appointed by the Board of Trade are deemed to have been appointed by the companies who failed to do so (secs. 8, 10). Appointments of arbitrators once made cannot be revoked, except on the written consent of the other companies (sec. 11). The arbitrators, before entering on the business of the reference, must appoint a duly qualified umpire; and on their failure to do so for seven days, the Board of Trade, on application, will make the appointment (secs. 12, 13). On the death, supervening incapacity, or failure for seven days of the umpire to act, another must be named by the arbitrators; and if they fail to do so for seven days, it will be done by the Board of Trade (secs. 14, 15). Substituted arbitrators and umpires have the same power as their predecessors (sec. 16). If within the agreed upon time, or otherwise if within thirty days, the arbitrators do not agree on their award, the reference devolves on the umpire (sec. 17). The arbitrators or umpire, as the case may be, are empowered to call for documents and to examine witnesses on oath; and to grant diligence for the recovery of documents or evidence, and for citing of witnesses. If required, the Lord Ordinary will issue letters in supplement or other writs in support of the diligence (sec. 27 and 28 Vict. c. 121. 25 and 26 Vict. c. 89. Observations. 18). Unless otherwise arranged, the arbitrators or umpire may proceed in the business of the reference as they think fit; and after giving due notice, even in absence of the parties or any of them (secs. 19, 20). Instead of a single decree-arbitral exhaustive of the reference, the arbitrators or umpire may make separate or consecutive awards; and in such a case, each award, so far as it goes, will be binding, even though the whole matters referred should not ultimately be determined (sec. 21). To render the award or awards valid, they must be duly signed and ready to be delivered within thirty days from the date of the reference, unless some other time has been specified. The umpire, however, unless the contrary has been arranged, may, by written prorogation, extend the period within which his award ought to be made (secs. 22, 23). Awards cannot be set aside for informality, but must be fully carried out; and the superior courts of law and equity throughout the United Kingdom are required to give every aid by distress infinite on the property of the companies or otherwise for this purpose (secs. 24, 25, 26). Unless otherwise agreed on by the parties, or determined in the award, the costs of the arbitration and award are borne equally; and in other respects each company bears its own expenses (secs. 27, 28). The provisions of the Act we have now been considering are incorporated in the Railway Construction Facilities Act, 1864 (schedule attached to the Act). By the Companies Act of 1862, any company registered under its provisions may, by writing under their common seal, agree to refer, and may refer to arbitration in accordance with the Railway Companies Arbitration Act, any existing or future difference, question, or matter whatsoever in dispute between themselves and any other company or person; and such companies as are parties to the reference may delegate to the referees power to settle any terms or to determine any matter capable of being settled or determined by the companies themselves, or by their directors or other managers (secs. 72, 73). It will be observed that by this last enactment the provisions of the Railway Companies Arbitration Act receive a much wider application than that originally contemplated. Previously they had been applicable to no other than companies or others working lines of railway on which steam power was employed; whereas they are, since 1862, rendered available in all questions whatever arising between registered companies on the one hand, and companies or persons of every description on the other. It must be noticed, however, that the provisions of the Railway Companies Arbitration Act, whether taken in their original or more extended sphere of operation, are in no case compulsatory. The Act is merely enabling, and binds no one who has not consented to a reference under its provisions. vations. CHAPTER XI. EVIDENCE (a). General obser- THE kind of evidence admissible in questions between companies, their members, and the public, as well as its import and legal effect, must be ascertained by referring to the rules and principles of evidence as these are generally applicable. At the same time, it must be observed, that from the peculiarities of the partnership relation, the common principles and rules of evidence frequently require a special adaptation when it forms the subject to which they are applied. Already in the course of this work we have, under the heads Evidence of Partnership (b), Prescription (c), Reference to Oath (d), and Admissions (e), somewhat fully examined certain cases in which this special adaptation is exemplified; and when treating of Bankruptcy, Dissolution, and Winding-up, we shall have occasion to return to the same subject. It has, however, been thought advisable to bring together within the compass of the present chapter some of the more important principles and rules which the characteristic incidents of the partnership relation bring into operation. Evidence of partnership. Evidence of Partnership.-Generally, the declarations or depositions of the alleged partners of another cannot be used against the latter to establish that he is a partner (f); but they may sometimes be admitted as part of the res gestæ, their effect being left to the jury (g). A witness cannot be asked whether he believed that two or more persons were partners, but he may be asked as to facts showing that they were so (h). In an action by a railway com (a) See Dickson on Evidence. (c) P. 279. (d) P. 529. (e) P. 532. (ƒ) Belch, 1806, 2 Bell's Com. 399, n. 4; Smith v. Puller, 1820, 2 Mur. 342. (g) Same case. (h) Chatto and Co. v. Pyper, 1827, 4 Mur. 354. |